The Rhetoric of Emergency Powers: How Partisan Crises Illuminate National Security Crises

Abstract

This paper addresses the interplay between power and persuasion regarding actions taken to combat an emergency. The threat of terrorism and the vigorous responses to it have stimulated a great deal of research into the problem of emergency powers. The lawful power to suspend specified individual rights or certain procedures is seen as potentially subversive of liberal democracy.

Many scholars concede that emergency powers are nonetheless necessary. Any law that would not prove inconvenient during an emergency is probably too elastic to provide real protections during peacetime. These scholars search for ways to make the suspension of the ordinary rules less dangerous. The solution most often arrived at is some sort of mechanism to ensure accountability. Any suspension of the rules must preserve democratic accountability.

This paper argues that these scholars abstract from the problem of crises that raise partisan issues. Sometimes this abstraction is accomplished by denying that economic crises are legitimate crises that might call for the suspension of the ordinary rules at all. The rhetoric that justifies emergency powers, however, does not lose its strength when employed in what a scholar considers an illegitimate crisis. Emergency powers are routinely used to implement controversial economic policies. In any event, it is impossible to address any crisis, national security or otherwise, in a way that does not harm some people and groups more than others, and so the potential for partisan contestation is always present.

Judgment by the people presumes that the threat to liberal democracy comes from a state that seeks to oppress the people. Partisan crises are problematic because there is not a unified people to evaluate the propriety of the government’s actions.

Partisan crises are not the exception to the rule, but instead illuminate what actually occurs during national security crises. The view that the government is distinct from the people and that emergency powers give it the opportunity to oppress the people errs regarding how power and persuasion operate in political life. Fascism could triumph in Germany because it put itself at the head of a popular economic program, not because a law permitted it to. Every crisis raises questions of what the “true good” of the people is, which is to say, which principles and thus whose interests must be sacrificed for higher principles and more worthy interests. In seemingly non-partisan crises, those to be sacrificed are so few or so easily cast as outsiders, like Confederate sympathizers during the Civil War, that it appears that there is a unified people. But the reality is that every appeal to the good of the people is an appeal to identify a part of the people with the whole people. Safeguarding the apparatus of democratic accountability, then, does not resolve the danger that emergency powers represent.